Theresa May's government suffered one of the UK's biggest parliamentary defeats ever as MPs rejected her Brexit deal with the EU. It was defeated by 432 votes to 202, with many of her own MPs turning against her and voting with the opposition. Labour leader Jeremy Corbyn immediately called for a vote of no confidence in the government, which will be heard January 16.

October 21, 2018: "95% of the withdrawal agreement and its protocols are now settled"

Theresa May will tell the Commons on Monday that 95% of the Brexit withdrawal agreement and its protocols are settled as she seeks to demonstrate to anxious MPs in her own party that she is making headway in the increasingly fraught divorce talks. The prime minister is expected to confirm she has resolved with the EU the future status of Gibraltar, developed a protocol around the UK’s military base in Cyprus and agreed a mechanism for resolving any future disputes with the EU. Taking the unusual step of briefing planned remarks to the Commons in advance, May will conclude that “taking all of this together, 95% of the withdrawal agreement and its protocols are now settled” in talks that she has until now largely insisted on keeping secret.

With less than six months to go before the United Kingdom is due to leave the European Union, there is a palpable sense of tension surrounding the Brexit negotiations. At their most recent meeting in Salzburg, Austria, in September, EU leaders in effect rejected British Prime Minister Theresa May’s ‘Chequers’ plan’ for the UK’s future relationship with the EU.

July 6, 2018: Theresa May and her cabinet have reached agreement on how to approach final Brexit talks.

The statement says the UK will “maintain a common rulebook for all goods” including agricultural products after Brexit, with the UK committing via treaty on continued harmonisation, thus avoiding border friction. (...) The plan proposes what is termed a “joint institutional framework” for interpreting UK-EU agreements, to be carried out in each jurisdiction by the respective courts. The system would include joint committees, or binding independent arbitration in the case of disputes, which would have reference to the European court of justice (ECJ) “as the interpreter of EU rules”. The plan, would still give the UK an independent trade policy, with the ability to set its own non-EU tariffs and to reach separate trade deals. It also promises to end the role of the ECJ in UK affairs. The statement ends by saying the plans, along with details to be set out in next week’s planned white paper, represent “a precise and responsible approach to the final stage of the negotiations”

The good news is that it is softer than she has previously claimed it would be. The bad news is that it is still Brexit.

There is a glimmer of hope for Britain. Different member states are moving at different speeds in the EU. In such a Europe, being in a form of single market and within a customs union would put Britain in an outer lane. But it would not have been forced off the road altogether. Later, the UK could move closer – or, if it wanted to, farther away.

March 20, 2018: Britain and the EU agreed the terms of a standstill transition period beginning when the UK exits the bloc in March next year and ending in December 2020, giving some reassurance to businesses worried by an imminent regulatory cliff edge. But Britain had to make major concessions to strike a deal – and because “nothing is agreed until everything is agreed” the transition period will only happen if the two sides reach a legal article 50 withdrawal agreement, which is far from certain.

Whilst a number of specific aspects are still under discussion, the European Council decided on 15 December that 'sufficient progress' had been achieved on the first-phase priority issues, and that negotiations could move on to the second phase – on transitional arrangements and the future EU-UK relationship – provided the commitments from the joint report are fully translated into the draft withdrawal agreement. For the transitional period, the European Parliament and the European Council have made clear that all existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures must apply, including the competence of the Court of Justice of the European Union, but with no UK participation in decision-making, since it would no longer be a member of the EU. Exploratory discussions on the framework for the future relationship will begin only after the adoption by the European Council of additional guidelines in March 2018. The UK has still to clarify its position on the type of trade deal it seeks with the EU.

Theresa May and the EU have announced a breakthrough deal which will allow Brexit negotiations to progress to the next stage

by Tom Embury-Dennis and Rob Merrick (December 9th 2017)

Theresa May and the EU have announced that a breakthrough deal has finally been reached to move the Brexit talks onto future trade and a transitional period, after days of tortuous negotiations.

Standing alongside Ms May, Jean-Claude Juncker, the European Commission President, said “sufficient progress” had been made on all three so-called “divorce issues” – the Irish border, a financial settlement and EU citizens’ rights.

Shadow Brexit Secretary Keir Starmer: (...) "it is encouraging that the European Commission has recommended sufficient progress in the Brexit negotiations. The priority for both sides now must be to agree transitional arrangements on the same basic terms as we have now. That means staying in the single market and a customs union for a time-limited period."

Even if there is no deal under Article 50, there would still have to be some kind of formal relationship between the UK and the EU in the long term - for trade, security and every other aspect of bilateral ties. But if the Article 50 process fails there is very little time to work on alternative strategies before Brexit in March 2019.

UPDATE: Juncker says EU will 'move on' from Brexit in state of union speech (by Daniel Boffey in Strasbourg, September 13th 2017)

European commission president Jean-Claude Juncker said he would always deeply lament the UK’s decision to leave the EU. “We have to respect the will of the British people,” he said. “We are going to make progress. We will keep moving. We will move on because Brexit isn’t everything. It isn’t the future of Europe. It isn’t the be all and end all ... On the 30 March 2019, we will be a union of 27 and suggest we prepare very well for that date.”

A second Brexit referendum? It’s looking more likely by the day (August 3rd 2017), opinion by Vernon Bogdanor

May called for a snap UK election on June 8th 2017 to resolve the European question and strengthen her negotiating hand. Had she gained the landslide she hoped for, the referendum result would have been confirmed and Brexit would be assured. But the election re-opens the issue of Europe – for four reasons.

There is probably no Commons majority for May’s version of Brexit - there is probably a stronger representation of remain MPs in parliament today than before the election.

The Labour party’s “soft Brexit” policy played a large part in its substantial gain in votes - raises the question of whether the decision in the 2016 referendum is final.

The election intensifies internal divisions in both major parties - there may be no majority for any of the forms of Brexit on offer.

The House of Lords will feel emboldened to reject a hard Brexit, arguing that a minority government has no mandate for it.

UK and EU negotiators ‘delve into the heart of the matter’ against background of infighting inside British government. On Monday morning, the UK’s Brexit secretary, David Davis, faced chief EU negotiator, Michel Barnier, across a table in Brussels. EU officials in Brussels don’t expect any deals to be struck this week, or even over the summer. Progress is crucial, however – by late October EU leaders will decide if “sufficient progress” on the Brexit divorce has been made to allow future trade talks to go ahead.

UPDATE: UK election result: What does it mean for Brexit? (June 9th 2017)

Almost a year ago, the UK voted to leave the EU. Since then it has been riven by divisions between Leavers and Remainers, and between fans of so-called hard Brexit - where the UK leaves the EU single market and the customs union - and a softer Brexit, where the UK maintains the benefits of those associations.

It was the British government that delayed the possible start of face-to-face Brexit negotiations, by calling a snap election. {{On Tuesday April 18th 2017 Prime Minister May called for a snap UK election on June 8th 2017 in order to give the people of the United Kingdom a say in whether or not May’s government is acting in the right way in the Brexit negotiations}}

The EU position is that it never wanted the UK to leave, but since Brexit is happening, it is ready and waiting. Brussels doesn't care what political flavour the new UK government has, it just wants a stable UK government, with a secure prime minister at its helm, who will stay in place for the duration of the negotiations and who won't waver and U-turn after agreements are made. A wobbly British premier, unable to make tough decisions and sell them at home, increases the possibility of no Brexit deal at all - the so-called cliff-edge scenario - and that would hurt both the EU and UK badly.

Mr Justice Peter Kelly, president of the High Court, was told by parties on both sides that they consented to strike out the challenge without an order. The plaintiffs sought to establish that Article 50 of the Lisbon Treaty [text] can be unilaterally revoked by the UK government, thereby halting Brexit, after it has been triggered. The defendants, Ireland and the Attorney General, were contesting the jurisdiction of the court over the action.

Theresa May has told parliament that she accepts Brexit will carry consequences for the UK, as a letter delivered to Brussels began a two-year countdown to Britain’s departure from the EU.

The prime minister made a speech on triggering article 50 minutes after the European council president, Donald Tusk, confirmed he had received notification. He declared that “the UK has delivered Brexit” nine months after a bruising referendum campaign.

UPDATE: The British Supreme Court has ruled against Theresa May's Brexit plans and decreed that MPs are entitled to vote on whether to trigger Article 50. The verdict is a blow for the Prime Minister, albeit one she had expected and had prepared for, after she initially wanted to launch the Brexit process unilaterally. There is now no doubt that Ms May must seek the permission of MPs, a vote due by the end of March 2017, before invoking Article 50 and starting a two-year countdown to Brexit. Independent.co.uk

Brexit

The British newspaper the Guardian called the referendum on June 23 2016 the ‘biggest political decision of the century’. British voters answered the question: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’

Moreover, particularly on the European continent, political leaders, thinktanks, scholars, business representatives and interested citizens are critically following the campaign for the referendum. On the European mainland various media has pointed out that leaving the European Union would be terrible for the (economic) stability and future of the EU. This can also be seen in the 'Brexit News' section just below. But would leaving the EU be legally possible when taken into account European as well as domestic law? This 'Library Special' tries to identify some –but not extensively- difficult legal talking points when the choice of the British people is to leave the EU.

It should be noted that the referendum is not legally binding. The Guardian of March 7th writes: ‘The British parliament still has to repeal the 1972 European Communities Act if the leave campaign wins, and ratify the Withdrawal Treaty. Members of Parliament could technically choose to ignore the referendum result and block the agreement, but it would be madness for politicians to attempt to go directly against a popular referendum result.’

Source: Financial Times

European Law

In European law a provision is codified for Member States to withdraw from the European Union. Article 50 of the Treaty on the European Union (Hereafter: TEU) reads as follows:

‘1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.’

Paragraph 1 of art. 50 clearly states that the decision of withdrawal from the European Union is a sole prerogative of the Member State. It therefore, needs to be in accordance with its own constitutional requirements. After a decision is made by the British government it need to send a notification to the European Council. The leaders of the 27 other Member States of the European Union convene to discuss the notification and to draft a 'Withdrawal Treaty'. This particular treaty is concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining consent of the European Parliament. It is confirmed by the 27 remaining heads of state of the European Union.

If such a negotiation between the United Kingdom and the European Union is successful, the date of the United Kingdom's withdrawal from the European Union will then be the date of entry into force of the Withdrawal Treaty they will have agreed on together. Otherwise, if such a Withdrawal Treaty is not concluded, the withdrawal will automatically happen two years after the notification of the United Kingdom's decision to the European Council, according to art. 50 paragraph 3. During the necessary period for negotiating, signing and ratifying a Withdrawal Treaty between the United Kingdom and the European Union, the United Kingdom will remain a Member State of the European Union and continue to participate in its activities under the same conditions as before. The only legal exception is codified in paragraph 4 of art. 50 TEU which states that a representative of the United Kingdom will no longer participate in the discussions of the European Council or in the Council of Ministers as well as in their preparatory bodies (United Kingdom's Ambassador in COREPER, diplomats and civil servants in other bodies).[1]

[1] Piris, J-C., Which Options would be available for the United Kingdom in the Case of a Withdrawal from the EU?, In: Britain Alone!: The Implications and Consequences of United Kingdom Exit from the EU, eds. Birkinshaw, P.J. and A.Biondi, Alphen aan den Rijn, Wolters Kluwer, 2016, pp 111-137.

[number of readers: 2113]

Brexit Library Special

The British newspaper The Guardian calls the referendum on June 23 the ‘biggest political decision of the century’. British voters should answer the question: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ We have created a Library Special on this topic in order to provide you easy access to our collection: a selective bibliography, newsitems, books, articles and online resources. If you have any questions, please don’t hesitate to ask the librarian via r.ridderhof@ppl.nl